Patterson v. United States of America, 999 F. Supp. 2d 300

On Jan. 8, 2012, Anthony Patterson (an Occupy D.C. protester) uttered profanity in McPherson Square when he saw three Tea Party supporters; he alleges his initial remark was not directed at anyone and was at conversational volume.
Park Police Sergeant Todd Reid and Officers Jennifer Lemke and Matthew Cooney approached; after an exchange in which Reid warned Patterson about profanity, Reid ordered Lemke and Cooney to arrest Patterson for disorderly conduct.
Patterson was processed and released; charges were later dropped. Patterson sued the officers under Bivens for alleged First and Fourth Amendment violations (retaliatory arrest and false arrest) and sued the United States under the FTCA for false arrest.
Defendants moved to dismiss the Bivens claims, arguing (1) there is no Bivens remedy for First Amendment retaliatory arrest and (2) they are entitled to qualified immunity because probable cause existed for disorderly conduct.
The court declined to consider a Gerstein affidavit attached by defendants and decided the motion on the complaint’s allegations.
The Court denied the motion to dismiss, holding (a) a Bivens remedy is available in this Circuit for First Amendment retaliatory-arrest claims (Dellums), and (b) accepting Patterson’s factual allegations, no reasonable officer could have found probable cause to arrest him for disorderly conduct, so qualified immunity did not apply at the pleading stage.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Availability of a Bivens remedy for First Amendment retaliatory arrest	Patterson: D.C. Circuit precedent recognizes a Bivens cause of action for retaliatory arrest (speech-protection)	Defs: Supreme Court has not extended Bivens to First Amendment claims; Dellums undermined by later decisions	Court: Bivens remedy available in D.C. Circuit for First Amendment retaliatory-arrest claims (followed Dellums)
Probable cause for disorderly conduct (Fourth Amendment)	Patterson: Facts (quiet profanity, no crowd reaction) show no probable cause	Defs: Officer safety/crowd concerns and Gerstein affidavit support probable cause	Court: On complaint’s facts, no reasonable officer could find probable cause; allegations suffice to defeat dismissal
Qualified immunity for officers	Patterson: Rights were clearly established (First & Fourth) and no reasonable officer would have arrested him	Defs: Officers reasonably believed probable cause existed; Reichle suggests limited protection	Court: Qualified immunity denied at this stage because right to be free from retaliatory arrest absent probable cause is clearly established in this Circuit
Consideration of extrinsic affidavit (conversion to summary judgment)	Patterson: Gerstein affidavit disputed; complaint does not rely on it	Defs: Attached affidavit supports probable cause	Court: Declined to consider Gerstein affidavit and did not convert motion; ruled on complaint alone

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (recognizes implied damages remedy against federal officers for Fourth Amendment violations)
Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977) (D.C. Cir. recognizes Bivens remedy for certain First Amendment retaliatory arrests)
Reichle v. Howards, 132 S. Ct. 2088 (2012) (addressed qualified immunity for alleged retaliatory arrest; noted Court had not extended Bivens to First Amendment in dicta)
Cohen v. California, 403 U.S. 15 (1971) (profanity can be protected speech under First Amendment)
City of Houston v. Hill, 482 U.S. 451 (1987) (First Amendment protects verbal challenges to police; arrests for speech face strict scrutiny)
Hartman v. Moore, 547 U.S. 250 (2006) (retaliatory prosecution claims require causal connection; relevant to First Amendment retaliation analysis)
Devenpeck v. Alford, 543 U.S. 146 (2004) (probable cause inquiry is objective; officers’ subjective intent irrelevant)
Gerstein v. Pugh, 420 U.S. 103 (1975) (defines Gerstein affidavit as officer’s sworn statement that probable cause exists)